Child-Sensitive Return
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Child-sensitive return Upholding the best interests of refugee and migrant children in return and reintegration decisions and processes in Germany November 2019 A UNICEF Germany and UNICEF Division of Private Fundraising and Partnership (PFP) project Authors: Dr. James Edwards, Dr. Silke Borgstedt, Inga Borchard, Jochen Resch (SINUS Markt- und Sozialforschung GmbH); PD Dr. Alexander Bagattini (Ludwig-Maximilians-Universität) Editing team: Desirée Weber (lead and coordination UNICEF Germany), Dr. Julie Lebegue (lead and coordination UNICEF PFP), Dr. Sebastian Sedlmayr, Kerstin Bücker, Dr. Kerstin Rosenow-Williams, Jenifer Stolz, Susanne Hassel, Christine Kahmann, Lydia Berneburg Proofreading: Dr. John Hemy Design: Schone Vormen 2 ACKNOWLEDGEMENTS The purpose of this study is to improve our understanding of the process which leads to a return decision, as well as the circumstances in which children are returned from Germany to their country of origin or to a third country. It was planned and commissioned by UNICEF Germany and conducted by SINUS Markt- und Sozialforschung GmbH, an independent German research institute, and is part of a series of similar reports drafted in the Netherlands, Sweden, and the United Kingdom. This study benefitted from the support, insights, and expertise of many individuals and organizations to whom we, at UNICEF Germany, offer our sincere gratitude. Thanks, firstly, to the authors JDr. James Edwards, Dr. Silke Borgstedt, Inga Borchard, Jochen Resch at SINUS Markt- und Sozialforschung GmbH and PD Dr. Alexander Bagattini at Ludwig-Maximilians-Universität. We would like to thank all those who were interviewed or contributed information. This includes colleagues and practitioners from a wide range of non-governmental and governmental organizations and UN Agencies, human rights and migration specialists, legal experts in asylum and family law, workers at reception and accommodation centres for migrants and refugees and at the Central Foreigners’ Department (Ausländerbehörde), members of the state police as well as governmental authorities, and policymakers from federal and state ministries. All were most generous with their time and expertise, and this research was only possible due to their participation. We also express our sincere thanks to colleagues at UNICEF PFP, especially to Julie Lebegue, who has provided tireless support in shaping and bringing this research project to fruition. It is our hope that it will provide an important basis for ongoing exchange and dialogue, and will contribute to improved policies and processes on return and reintegration, centred around the best interests of the child. UNICEF Germany Berlin, November 2019 3 FOREWORD A child is a child: The best interests of refugee and migrant children at the centre of return decisions In 2019, we celebrate the 30th anniversary of the United Nations Convention on the Rights of the Child (UNCRC, or CRC). During the last 30 years, the Convention has become one of the most widely ratified treaties in the history of the UN and has helped to improve children’s lives worldwide. However, by no means every child gets to enjoy what we would call a full childhood. Far too many girls and boys endure violations of their rights, in every region, every day. Crises and conflict, violence, natural disasters, instability, and poverty deprive millions of children of their right to a childhood; of being supported, protected, and heard in the sense of the Convention. Across the world, nearly 50 million children have been internally displaced, or have fled or migrated across borders. The number of countries or regions being torn and shaken by conflict is as high as it has been since 1989. Throughout their often extensive, exhausting, and terrifying journeys, children are extremely vulnerable. They are at risk of violence and exploitation. Some are separated from their families; too many have to cope with the loss of family members, neighbours, or friends. Driven by the hope of finding safety and security or new opportunities, many families and unaccompanied children have lately arrived in Europe. We can be glad and grateful that Germany has offered desperately needed refuge, and has – by way of thousands of volunteers, civil servants, mayors, entrepreneurs, and many others – given them a warm welcome. Many of these families and children have found – and taken – the opportunity to rebuild their lives and appreciate stability after years of being uprooted by war and other violence. However, not every child has the opportunity to stay in Germany. Families and children must face the consequences of decisions that oblige them to return to their home country or a third country. What does this “return decision” mean for children who have recently come to Germany, and whose memories of war, insecurity, extreme poverty, and unsecure flight are still vivid? What does it imply for children born in Germany, or children who have been living in the country for many years? We can only guess what the arrival of this official decision really means for every family and especially for every single child concerned. What we do know is that, for very good reasons, the principle of the best interests of the child was crafted 30 years ago as one of the overarching guiding principles of the CRC. Germany, as one of the signatories of the Convention, is bound to uphold this right for all children – no matter where they come from, no matter their migration status, or their language, or their origin country. For UNICEF, it is therefore of paramount importance that the principle of the best interests of the child be taken as the primary consideration in all decisions and actions concerning children in asylum, return, and reintegration processes. The present study – “Child-sensitive return. Upholding the best interests of refugee and migrant children in return and reintegration decisions and processes in Germany” – outlines areas of progress in policy and practice for children made in recent years. However, it also clearly shows that more action is required to ensure that the principle of the best interests of the child guides all decisions in this area. 4 In order to assess what is in the best interests of children, it is critical to: a) listen to them individually; and b) to consider their views in all matters concerning them. It is their right to be heard. However, this should of course only be pursued if it is the child’s will to speak. It is important that the specific situation of each and every child is acknowledged. A child’s views, individual needs, and evolving capacities must be considered. Administration and all other staff concerned need to provide a child appropriate setting, while communication with children requires personnel well-qualified to make children feel safe and protected, and to allow them to speak. Further, it is our very duty to make sure that every child who arrives in Germany knows their rights and understands all processes applicable to them. Refugee and migrant children are individuals, not a homogenous group. They each have a different story, background, and – often very arduous – experience. Even at their young age, they have already undergone significant trials. As children, they may judge and view circumstances differently than do adults. They have been and continue to be exposed to different levels of threats, dangers, and challenges than those faced by adults. We must make sure that all children are protected and have the best possible chance to develop, participate, and contribute in order to pursue flourishing lives. But the degree of this support cannot be dependent on the city or federal state at which they happen to arrive after their long journey to Germany. The current UNICEF study aims to contribute a better insight into the very difficult and complex situation of children in the asylum, return, and reintegration process in Germany. The qualitative study is not representative, but it nonetheless provides important indicators of required actions. It demonstrates good practices and lays a foundation for further improvements. Children have the most to gain and the most to lose when decisions are made regarding their migration status. Politicians, authorities, and courts are entrusted to bring children and their best interests to the forefront of all decisions that are made in asylum, return, and reintegration processes. Only if this principle is respected can refugee and migrant children have a true chance of securing a childhood worthy of the name; for a child is always and foremost a child, not a migrant or refugee. Christian Schneider Cologne, November 2019 5 6 TABLE OF CONTENTS List of acronyms 9 Definition of key terms 10 Executive summary 12 PART I: INTRODUCTION & BACKGROUND 18 1 Introduction 19 1.1 Scope 20 1.2 Methodological approach 20 2 The principle of the best interests of the child 22 2.1 The best interests of the child in the UNCRC 22 2.2 The best interests of the child under German law 22 2.3 Operationalization of the best interests principle 24 2.4 The relevance of the eighteenth birthday 25 PART II: FINDINGS 27 3 Study findings 2328 3.1 Asylum Procedure 28 3.1.1 Child-sensitiveness of asylum procedures 29 3.1.2 Asylum procedures for unaccompanied children 32 3.1.3 Asylum procedures for accompanied children 33 3.1.4 Documentation 35 3.1.5 Negative asylum decisions 35 3.2 Appeal mechanisms 36 3.2.1 Return Decision after appeal 37 3.3 Return Process 37 3.3.1 Return counselling and meetings 39 3.3.2 Child-sensitive information